To Sign or Not to Sign: the Constitutionality of Residency Requirements for Nomination Petition Circulators

The coming days will present a unique time in Pennsylvania’s political cycle; petition circulation. To be placed on the primary ballot in May, Republican and Democratic candidates have until March 6th 2017 to obtain a specific number of signatures from qualified electors in their election district. Subsequently, citizens may legally challenge a potential candidate’s signatures through a variety of methods. Many of those methods involve proving the potential candidate lacks the requisite number of qualified electors signatures. Another effective method of challenging the validity of a candidates petitions is to attack the validity of the circulator’s affidavit. When a circulator’s affidavit is found to be invalid, the entire sheet of signatures is rejected. Smart campaigns will target and review their opponent’s circulators affidavit to ensure that the circulator was a “qualified elector.” The circulator must meet the same qualified elector requirements of any signer. Specifically, circulators must be a member of the same party within the county the circulation sheet was designated for and must be a resident within the political subdivision to which the candidate seeks office.

Similar to Pennsylvania, Virginia law also regulates circulators. However, the Virginia law was challenged for being an unconstitutional limit on political free speech. The Fourth Circuit Court determined that preventing an individual from being a circulator was a restriction on political free speech.[1] Consequently, the Fourth Circuit struck down the residency restriction for circulators. Following the events in Virginia, the Pennsylvania Attorney General published guidance that stated the Attorney General’s Office would no longer enforce the residency restriction for circulators. Significantly, petitions are challenged civilly by private parties and not by the Attorney General; therefore, the Attorney General’s guidance has limited effect.

The Pennsylvania Supreme Court reviewed the same arguments made before the Fourth Circuit; that residency requirements for circulators are an undue burden on the right of political free speech.[2] Like Virginia, the Pennsylvania Supreme Court deemed the law unconstitutional. This decision by the Pennsylvania Supreme Court followed the same legal reasoning the District Court of Eastern Pennsylvania found the same residency requirements for affiants unconstitutional.[3] Recently, in the Green Party v. Aichele, which settled just months ago, the United States District Court for the Eastern District of Pennsylvania found that restrictions on circulator residency, even if out-of-state, was unconstitutional.[4]

This means that the executive branch, the Pennsylvania Supreme Court, and some federal circuit courts have determined that residency requirements for circulators of political signature petitions are either unconstitutional or unenforceable. For candidates, this means, volunteers and supporters from across the Commonwealth, and most likely even from outside of the state, that assist in the circulating of their signature petitions.